Who leaked Alito's opinion on Roe v. Wade and why?

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Justice Samuel Alito and his wife Mary Ann — Andrew Harnik / Pool via Reuters
Justice Samuel Alito and his wife Mary Ann — Andrew Harnik / Pool via Reuters

Since May 3, when Politico published a leaked draft by Supreme Court Justice Samuel Alito striking down Roe v. Wade, thousands of people have taken to the streets in defense of reproductive rights.

Scores of pundits have also taken to TV, radio, and websites to speculate about who leaked the draft opinion and why. No one knows the answer to those questions — and possibly no one will ever know — but the rumors give an interesting insight into the inner workings of the high court.

What the leak seems to show is that in spite of the court's staid, scholarly image, it's a pit of cut-throat intrigue.

The narrative pushed by right-wing commentators is that Alito's draft was leaked by one of the so-called "liberal" Justices — Breyer, Sotomayor, and Kagan — or by one of their staff.

Sen. Ted Cruz, for example, speculated that "I think it is very, very likely a law clerk. And it is very, very likely a law clerk for one of the three liberal justices...

"If I were to guess, the most likely justice for whom the law clerk is clerking is Sonia Sotomayor, because she's the most partisan of the justices."

When asked why he thinks Sotomayor's clerk may have leaked the document, Cruz said she's the one most likely to hire "wild-eyed partisans as clerks."

The right-wing theory, then, is that a wild-eyed, leftist law clerk leaked the document, knowing that it would provoke mass protests and hoping those would pressure the justices to change their minds about their decision.

There are several things wrong with that theory.

First, any law clerk would realize that leaking draft opinions — especially such a controversial opinion — would bring their career to a quick end if they were caught. They would never be appointed to the judgeships most of them covet, and they wouldn't even be hired by prestigious law firms.

Second, "wild-eyed partisans" don't clerk for Supreme Court Justices. Even "liberals" on the federal bench are the most institutionalist of institutionalists. They are committed to following the rules to the letter, or they wouldn't want to work for the high court.

Third, most of the conservative justices are anti-abortion fanatics and have been for their entire careers, no matter how much they dissembled in their confirmation hearings. Would a picket line — even on their front lawn — sway them? Not likely.

There's another interesting theory, though. In this scenario, the leaker is none other than Chief Justice John Roberts himself.

Roberts did not join the five other Republican-appointed justices in supporting Alito's draft ruling. Rumor has it that Roberts wanted to gut Roe v. Wade by supporting the Mississippi state law at issue in the case, but not to explicitly overturn the whole precedent. This way, he reportedly reasoned, anti-abortion activists get what they want, but the court also avoids the stigma of stating outright that women have no rights over their own bodies.

In this theory, Roberts leaked the Alito draft knowing that it would provoke mass outrage and hoping that one or more of the conservative justices would defect from Alito and join him in a more moderate opinion. In that case, there would be no majority opinion, only concurring opinions, each one joined by a minority of the justices.

In this way, Roberts could hope to satisfy the anti-abortion right but also shield the high court from charges of extremism.

The most Machiavellian theory is that the leak came from Alito himself, or from one of his close allies: Clarence Thomas or Amy Coney Barrett.

In this scenario, Alito and his allies were aware that Roberts was trying to peel off one or two of the more moderate conservatives to defeat a majority opinion striking down Roe. They then leaked the decision precisely because it would provoke demonstrations.

They could then say to any wavering justice that the court can't allow itself to be pushed around by mob rule. To change their vote in the face of public protests — on their own front lawns, no less! — would fatally undermine the court's authority. This is an argument that could well work with conservative judges.

At some point in the future, we might learn who leaked the Alito draft and why. In the meantime, the theories show us a Supreme Court that would not be out of place in Game of Thrones.